Author: Vancouver Family lawyer Matthew Katsionis
Grandparents are often highly valued in any family. However, when a divorce or separation occurs, they can often be placed to the side while the parents argue and litigate. As that’s happening, the grandparents are left in the dark as to what their rights are, when they can see their grandchildren, and if they will be able to take them overnight or on vacation.
In B.C., grandparent rights exist, but they are not at the same level as a parent or step-parent rights. The family law courts in B.C. have adopted a hybrid approach on how to deal with cases where the grandparents are seeking time and access to their grandchildren. A few key considerations which come out of these family law cases:
- The best interests of a child is the primary consideration in all child access and parenting time decisions.
- There is no presumption that grandparent contact is in the best interests of a child;
- The burden to prove that it is in the best interests of the child is on the grandparents as opposed to being on the parents to prove otherwise.
Therefore, in these family law cases, it is incumbent on the grandparent(s) to bring forward an application for access to a child but in doing so, the grandparent must prove that contact with the child is in the best interests of the child(ren). Best interests include the factors outlined in section 37 of the Family Law Act of British Columbia:
(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.
(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following:
(a) the child's health and emotional well-being;
(b) the child's views, unless it would be inappropriate to consider them;
(c) the nature and strength of the relationships between the child and significant persons in the child's life;
(d) the history of the child's care;
(e) the child's need for stability, given the child's age and stage of development;
(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;
(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;
(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.
It is also important to note that in these family law cases, the courts, typically, do not want to interfere with the custodial parent’s decisions. Moreover, the family law courts believe that when there is a high level of hostility and conflict between the grandparent(s) and the custodial parents, the best interests of the child are likely not best served by giving the grandparent(s) contact or access with the children. A lot of deference is given to the custodial parents, and if the conflict is too high, the court does not want to add to those issues.
If you have questions about grandparent contact with grandchildren after separation or divorce, the British Columbia family lawyers at Crossroads Law Vancouver can help.